Introduction
Law comprises of established rules and regulations that govern human behavior and interactions. They are established ways of doing things which makes it simple for individuals to live with some sort of regularity. The offenders are punished by the law since law is legally binding implying that individuals have no option but to comply with its provisions.
Laws are divided into two major categories according to their functionality, the basis of sub-division lies in their sources. The formal sources of law refer to authorized provisions of law contained in the constitution and are further general applications being permissively obligatory.
Formal laws are created in accordance to specific procedures and methods, which should be acceptable by all affected parties. The material sources of law on the other hand are not applicable universally. The provisions and tenets of such rules should be proved beyond doubt before their application. Law making process in many countries is left to the legislative arm of government since every individual is evenly represented in it.
Law in the international system is not applied the same way, as is the case with national law. This implies that national law is more superior as compared to any other law. Formal sources in the international system do not exist since parliaments do not consent to laws instead only states agree to implement rules of general application.
In the international system, the laws that exist have their basis on the material sources. States agree to implement specific rules by providing evidence on how they can affect cooperation in the international system. Evidence in the international system is derived from interactions among states which sheds some light to the material sources of law.
States agree to enter into multilateral treaties and consent some specified international laws to guide their behaviors. States are obliged to maintain and sustain the agreed upon laws, the cooperating states may not establish judicial courts instead they rely on individual states to see into it that everything runs smoothly.
The International Court of Justice
The International Court of Justice became fully in operation in 2002, it is concerned with implementation of the international laws. The court arbitrates on matters affecting the international system by setting up general rules to be observed by each member state. The court sets forums for discussions pertaining to the status of international law and thereby establishing rules that are recognized by all member state.
The court relies on material sources and hence international custom is part of the rules only if they are proved to be applicable. All laws set up by parliaments in member states are held in high esteem by the international court. The court strives to partial as much as possible by not favoring the provisions of one state in arbitrating matters in the international system.
However, the court’s decision has no consequence to particular states except in the specified case. The court’s stipulation are articulated basing on the findings and rulings of the available tribunals implying that the court may be having a certain order of laws, that is from the most important to the least important.
The court’s previous rulings are always reviewed in making judgments at hand. Over time, the judges at the court have identified material sources as official. Jurists find it hard to put a line between material and official sources of law. The problem extends to the stage of application. The judges mainly depend on the available hierarchy.
The court finds the correct version of interpretation of particular treaty before attempting to offer arbitration. The general principles are consulted before decisions are made because sometimes, treaties might be displaced or could possibly have been amended making it difficult to grasp the original provision.
The court utilizes a number of components in its running the affairs including the following.
International Customs
The customs in the international court of Justice refers to evidence of general practice accepted as law. The court urges states to recognize some practices before of their nature and effects to the society. The claims made at the court ought to be scientific implying that evidence should be provided. Evidence as one of the scientific tools of proof relies on observation, touch, taste, smell and hearing.
The court therefore: liaises with diplomatic representatives, scrutinizing assurance statements from officials, checking the media reports, analyzing utterances of senior government officials, commentaries by governments and resolutions made at the United Nations General Assembly.
The rudiments of the evidence are carefully assessed to arrive at an exact position. Evidence should abide by time by not being too long to short. The evidence given should be uniform, consistent and pragmatic because the facts collected are aimed at solving problems presently.
Uniformity provides that any claim made basing on customary should be conversant to the other party and held as true as well. Furthermore, evidence should be accompanied by generality of the practice implying that the two parties in a conflict should be willing to solve the issue and consent to participate actively.
Law-making Treaties and Other Material Sources
The sources of laws in the international system are multifaceted giving a notion that they are treated as both formal and material. Though customary laws emanate from material sources, they are given equal measures and weights as official sources.
The laws in the international system are made through the conclusions and keen interpretation of the resolutions of international conferences, the decisions made and put into practice by the United Nations General Assembly. This implies that the plans approved by the International Law Commission will have unswerving influence to the content of the law.
The law crafting treaties establish lawful obligations whose implementation does not have any effect on it. If two countries agree to achieve particular goals together, they would not have formed any law because the agreement comes to an end after fulfilling the objectives.
The major aim of law-making treaty is to establish general norms to be applied in future interactions pertaining to legal premises and the provisions are supposed to be the same. In this line of thinking, even when provisions of the original treaty diminishes current rules and norms of the customary will remain, only a few things will change but not the whole law meaning that the content will be the same.
Some other treaties such as those bilateral in nature may serve as a proof to customary laws and hence there cannot be patent and rigid variation between law –making treaties and others. Courts recognize the existence of bilateral laws the way they are, without necessarily having treaty obligation. The court is mandated to do a critical analysis in assessing treaties if impartiality is to be realized.
General Principles of Law
The International Court recognizes the provisions of general laws that are accepted by all member states as earlier stated. Some states subscribe more to the provisions and operations of the court as compared to others. The dependence of the court on laws of state members has resulted to problematic conflicts since some states have ambiguous provisions which exist to frustrate others.
The court resorted into adopting universal rules of behavior so as to reduce conflict of interests. The court has unified the provisions of various states to come up with a more universal consensus. All in all, the court does not have a rigid way of interpreting phenomena. Many factors are considered in making judgments such as the occurrence of the problem in terms of frequency, the region that the problem is occurring or occurred and the nature of conflict, for instance, is it political, economical, social or technological.
It is not lost on us that some conditions call for application of domestic law, especially on matters relating to domestic rights such as goo faith. Domestic law is utilized in providing evidence, setting a standard operating procedure and coming up with jurisdictional queries.
The universal rules governing the operations of the court states that no individual can be involved in arbitrating on issues that he/she is involved. The International law in most cases applies the logic of customary law especially on matters touching on: equality of states, consent, and legality of accord as well as independence of seas.
However, particular basic principles have currently been established apart as driving prerequisites of jus cogens that may perhaps influence the consequences of extra-ordinary rules. The general principle of the court is that it does not observe dogma of precedent but tries to preserve judicial uniformity.
Judicial Decisions
Decisions of international tribunals are never tightly formal instead sometimes referred to as commanding evidence of the status of the law and pragmatic importance of the modeling of ‘subsidiary means’ is real. Vital decisions of jurisprudence will basically have critical impacts to the law.
In arbitral laws, the writing of the law constitutes recurrent reference to conclusions of the arbitral tribunals. The superiority of arbitral tribunals has differed significantly, but there have been numerous prizes which have remarkable donations to the growth of the law by renowned jurists meeting as judges, mediators, or representatives.
Concerning interpretation of peace treaties, the United Nations General Assembly gave the court some questions to be used for suggestive opinion. The questions were sampled from the past courses of actions from troubled states such as Bulgaria, Hungary and Romania.
The court’s article 38(1) (D), decision of national courts, permits the court to borrow from national tribunals since matters of human concern cuts across all societies. Particular verdicts give straight evidence about the pragmatic nature of the state. Other decisions however contain liberal studies of the level of law and reflect on available sources.
A lot of verdicts of the court involve matters of general significance to the society. Ad hoc international tribunals established by consent between a few states possibly will reap important proclamations on fragile matters, relying mostly on the status of the tribunal as well as its constituents, and on the situation upon which it operates.
The Literatures of Publicists
The Statute of the International Court stipulates that the teachings of the highly experienced be utilized in deducing issues. The writers are believed to have had decisive influence in the field and whatever they publish can serve as evidence and terms of reference can be made from their works.
It is though, evident that personal features penetrate into some evaluation of juristic view, that individual writer replicate general and other discrimination, and, additionally, that some publicists see themselves to be proliferating innovative and superior points as opposed to holding unreceptive assessment of the law.
Whatsoever the need for concern, the views of publicists are used widely. The reality that writers are employed by the court is confirmed by the rebellious and detached views in which the machineries are located in more detail and imitate the real techniques of models of the court as complete. Countless reference to writers is to be created in the insistence before the court.
Consideration of Humanity
Deliberations of human dignity may perhaps be intertwined with the skewed approval of the jurist, but, supplementary to objectively, they could be linked to human principles previously confined by constructive authorized values which, when put in use collectively, disclose particular criterion of civic plan and provoke the application of comparison.
Such criterion has apparent links to wide-ranging ethics of law and with egalitarianism, but they require no meticulous explanation. Allusion to values or laws of civilization appear in prefaces of conferences in declarations of the United Nations General Assembly.